Agency must provide access to privately-held public records

Agency must provide access to privately-held public records

07/17/95

ARKANSAS–Public agencies are responsible for providing reasonable access to public records not otherwise exempt from the Arkansas Freedom of Information Act, even when the records are in the custody of a private entity, the Supreme Court of Arkansas decided unanimously in May.

The fact that an agency does not have control or possession of the materials might be relevant in determining whether the records are in fact “public,” the court said, but once the public nature of documents is settled, the agency must arrange for reasonable access to the records in its office or the office of the private custodian.

The case arose in late April 1994 when Arkansas resident Mark Swaney filed a state open records act request with the Arkansas Development Finance Authority. Swaney sought access to Deloitte & Touche audits of the agency for 1985 to 1993, the auditor’s working papers and certain other materials.

ADFA responded that it would provide copies of the audits and other requested materials, but said that it did not possess copies of the working papers, and that Deloitte & Touche would release them only if subpoenaed.

Swaney brought a state open records action in Washington County Circuit Court in Fayetteville to compel the ADFA to produce the papers.

The circuit court ruled that the working papers were public records, but held that the state open records act does not require a state agency to obtain records from a private entity. Swaney appealed to the state Supreme Court.

On appeal, the ADFA did not dispute that the private auditor’s working papers were subject to disclosure under the open records act, but maintained that Swaney, not the agency, was responsible for obtaining the records from Deloitte & Touche.

The Supreme Court noted that the state open records act requires agencies to provide citizens with reasonable access to public records, and concluded that the ADFA was responsible for providing the materials even though Deloitte & Touche was in possession. (Swaney v. Tilford; Requester’s Counsel: Robert Harder, Fayetteville)